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HomeMy WebLinkAbout2007-07-20 TRoyal PLANNING COMMISSION COUNTY OF HAWAI‘I HEARING TRANSCRIPT July 21, 2006 ROYAL ALII LLC (SMA 05-007) A regularly advertised hearing on the application of was called to order at 9:05 a.m. at the King Kamehameha's Kona Beach Hotel, 75-5660 nd Palani Road, Kailua-Kona, Hawaii with 2 Vice-Chairman Rodney Watanabe presiding. Kimo Alameda PRESENT:Rodney Watanabe ABSENT & EXCUSED: C. William R. Graham Jeffrey McCall Fred GaldonesRene’ Siracusa Andrew Iwashita Alvin Rho Allen Salavea Ivan Torigoe, Deputy Corporation Counsel Christopher J. Yuen, Planning Director Norman Hayashi, Planning Program Manager Phyllis Fujimoto, Staff Planner Jeff Darrow, Staff Planner And approximately 27 people from the public in attendance. APPLICANT: ROYAL ALII LLC (SMA 05-007) Continuation on the application for a Special Management Area Use Permit to allow the development of a 19-unit single family residential development and related uses. The property is located on the east (mauka) side of Alii Drive, across from the Alohi Kai Subdivision and Kamoa Point, Kaumalumalu, North Kona, Hawaii, TMK: 7-7-4:57 and 58. WATANABE:The first item on the agenda is Royal Ali`i LLC, SMA Use Permit 05-007. And I understand, Mr. Rho, as our newest Commissioner, are you planning to participate in this? This has been continued a couple of times or -. RHO:I’ll probably abstain from voting. WATANABE:Okay, okay. Well, the reason I ask that is because if you were going to participate and vote then we would have to, for your benefit, you know, start from the very beginning. But seeing as you’re abstaining, I guess, Mr. Hayashi would be able to condense that. HAYASHI:Thank you, Mr. Chair. I believe all of you are familiar with the location of the subject project and the details of the project, so I will dispense with that, unless any of the Commissioners would like me to give that presentation to you. Okay. EXHIBIT A 1 thth This particular application was heard both on February 24 and, also, on May 26 of this th year. At the May 26 meeting, the Planning Commission voted to continue the hearing in order to allow a few things. The first was the Commission requested the Applicant contact the State of Hawaii agency responsible, having jurisdiction over the Judd Trail and, also, to see if they would be able to attend this meeting. It’s my understanding we do have correspondence to the effect that the Applicant had contacted the State agency involved, which is the Na Ala Hele Trails people or the State Historic Preservation Division. The second thing that the Commission also requested is that the Applicant contact the interviewees of the Agricultural Cultural Report and have those individuals in attendance, interviewees be present if possible and, also, to provide copies of the cultural report to those interviewees. We were informed that the Applicant had submitted the report to the interviewees listed in the report. Also, the Commission requested that photos be taken of this particular property. The staff did go out two days ago to take a photo of the entrance of the property in the vicinity of the Judd Trail. Unfortunately, the photo is not really clear as to exactly where the Judd Trail is located. We also went onto the web and we got some aerial photos that were taken of the coastline of the Big Island by Hawaiian Images showing where the subject property is located, as well as some of the surrounding areas. So I’ll circulate that at this time. Again, for the Commissioners’ information, the Planning Director is recommending approval of this particular request with numerous conditions. Are there any questions? WATANABE:Fellow Commissioners, any questions? Okay, seeing that there are none, would the Applicants please come forward? LAU:Good morning, Mr. Chairman. WATANABE:Good morning. LAU:My name is Christopher Lau. I’m the President of Towne Development of Hawaii, who is the managing member of the Royal Alii LLC. WATANABE:May I swear you in. Okay. Do you swear or affirm to tell the truth now before the Hawaii Planning Commission? LAU:Yes. WATANABE:And, for the record, would you state your name and address, please? EXHIBIT A 2 LAU:Yes, my name is Christopher Lau, address is 220 South King Street, Suite 2170, Honolulu 96813. As I stated earlier, I’m the President of Towne Development of Hawaii, who is the managing member of the Royal Alii LLC. Mr. Chairman, at our last hearing, as Mr. Hayashi mentioned, we were requested to contact the Na Ala Hele organization, which we have; and this morning there’s a representative, Clement Chang is here for any questions that the Commissioners may have. We also sent out copies of the Cultural Assessment Report to the interviewees. I have with me today, well, I’ve invited him and he’s here, Joseph Kennedy, who’s is the principle of Archaeological Consultants of the Pacific. They were the ones who prepared the report. So Mr. Kennedy is here to answer any questions with respect to the cultural survey. One of the issues that came up last time had to do with the Judd Trail; and since our last Commission hearing, we’ve done additional research. We have, well, first of all, let’s start with the tax map. On the lower right-hand side is a copy of the tax map that deals with this parcel. Above it is a blow-up showing the two parcels in question, Parcels 57 and 58. On the tax map there is a notation of the location of the Judd Trail, which is on Parcel 61, which is south of Parcel 58. So you have a blow-up in front of you. Anticipating that the Commission is going to require a metes and bounds description, we sent Wes Thomas and Associates, licensed surveyors, out in the field to locate the walls that are in existence. In front of you you have a copy, the Wes Thomas worksheet showing where the walls are. A blow-up, a full-sized copy is on the wall in the middle. If acceptable by this Commission, what we are proposing is that we prepare a metes and bounds description of the Judd Trail on the tax map, as shown on the Wes Thomas worksheet and, also, include the portion of the map showing the walls. Those are the only walls in existence that we found; and that’s confirmed by the findings of Wes Thomas. With respect to pictures, there are several pictures in the Cultural Impact Assessment showing the walls. WATANABE:Thank you. Fellow Commissioners, are there any questions of the Applicant? Mr. Iwashita? IWASHITA:Thank you, Mr. Chair. Sorry, I’m just trying to study the map closer and frame my question properly. LAU:Oh, there’s one other thing I’d like to point out. Mauka of our property, as shown on the tax map, there is a portion of the Judd Trail that was subdivided as part of the Hoomalu Subdivision. So that exists as a separate legal lot. IWASHITA:That is, that’s the lot labeled Lot A, Judd Trail? Is that correct, Mr. Lau? EXHIBIT A 3 LAU:Yes. On the tax map it’s designated as Parcel 74. So what we would do is we would map the Judd Trail where Lot 74 ends to Ali`i Drive. IWASHITA:Can you say that again, please? LAU:Yes. We would prepare a metes and bounds description of the Judd Trail from the makai terminus of Lot 74 down to Ali`i Drive. If you look at the tax map, it’s shown as a dashed area, and it’s also noted as Judd Trail. IWASHITA:As referenced, my understanding of the issue of the Judd Trail is, you know, established as a government road from its inception in 1859. And, so, as far as once the metes and bounds description is prepared, is it, or can you give me your understanding as to then what’s going to be done with the title to that area, or what is the Applicant’s position as to title to the Judd Trail? LAU:Well, with respect to the property, the portion of the Judd Trail that is not on our property, I believe that it would be an easement, but I’m not the property owner. With respect to the portion of the trail that is shown on the map as having the walls, upon request of the proper agency, we would deed that portion to them. IWASHITA:Okay. Another, I don’t know if we can address it here today. But as far as the, what’s depicted on the map prepared by Wes Thomas Associates, I guess what appears to be the wall down at the makai boundary extending mauka, those are, I guess, Wes Thomas’s representation as to the, what exists today as far as the walls, stone walls? LAU:That is correct. And I believe that Mr. Chang from Na Ala Hele can confirm that. IWASHITA:Okay. He’ll be testifying later? LAU:If you want, we can bring him up now. WATANABE:I think that would be -. Mr. Chang, may I swear you in? Do you swear or affirm to tell the truth now before the Hawai`i County Planning Commission? CHANG:I do. WATANABE:Would you state your name and address for the record, please? CHANG:My name is Clement Chang, care of 64 Lehala Drive. I’m with the Division of Forestry, Wild Life and Na Ala Hele Program. WATANABE:Thank you. IWASHITA:Good morning, Clement. EXHIBIT A 4 CHANG:Good morning. IWASHITA:How are you? CHANG:I’m all right. IWASHITA:So can you clarify for me what is the capacity in which you’re testifying today? CHANG:Actually, I’m representing both the Na Ala Hele and the Land Division ‘cause at this time this property is actually under the jurisdiction of Land Division until it is -. IWASHITA:State of Hawai`i? CHANG:Yes. Until it would be turned over onto us and put under our program; but until it’s done that is actually under Land Division -. IWASHITA:What’s the correct word you said the name of the organization, again? CHANG:The Na Ala Hele Program. IWASHITA:Na Ala Hele? CHANG:Na Ala Hele. IWASHITA:Na Ala Hele. Thank you. Na Ala Hele. So as far as your personal knowledge, does the Wes Thomas map that we’re looking at today accurately reflect the remnants of the stonewall that is attributed to be part of the Judd Trail? CHANG:That is correct. IWASHITA:Okay. And, then, have you walked this entire boundary, up to the mauka extent of this boundary to see if there are any other stonewall remnants of the Judd Trail? CHANG:I have not walked above. But as from hearing testimony, I do know that the walls do not exist. It only exists within this property. IWASHITA:Okay. So your personal knowledge is limited just to what’s shown on the map? CHANG:Yes. EXHIBIT A 5 IWASHITA:Okay. And you’re relying on other testimony as to the fact that there’s no other walls mauka of what’s represented on the map? CHANG:Yes. But that would be on the properties up above and not on the property that we’re talking about here today. IWASHITA:Oh, okay. On properties further mauka there are remnants of walls that were originally built? CHANG:Not that I know of, you know, with going up to the highway. I’m only familiar with the property in question today; and within that property the wall does exist. IWASHITA:Okay. Thank you. WATANABE:Mr. Graham? Mr. Chang, you may have another question. GRAHAM:Yeah, I’ll address my question first to Mr. Lau but maybe you can help out, and I just want to try to be clear on everything. And, so, Mr. Lau, taking from your testimony, we’ve jumped right into talking about the Judd Trail on this application because it has been our primary focus. And it feels to me like there’s two aspects to it. One is sort of an archaeological preservation aspect and another is making a, or facilitating some future use of a real trail that can be used by the people of Hawai`i. And my primary focus is on the second one, but we certainly want to take care of the first one, too. So my understanding of where we are now -. At the last meeting, I believe you all offered to do a trail stabilization effort on the trail part that was within your property. Is that still something you’re offering to do? LAU:With respect to the walls, I think we’re just talking about the walls because that’s what exists and subject to the approval of the State agency that has jurisdiction. Yes, we would stabilize. We would also, I think we talked about clearing the area of any noxious weeds. GRAHAM:And that would include keawe trees and things like that that might be grown into it or -? LAU:Yes, yeah. GRAHAM:Okay. And then once it leaves your property, or abuts your property, or whatever going mauka, from there until like the mauka boundary, extent of your property, is what you’re offering to have a metes and bounds survey done on this. Is that correct? LAU:Well, the metes and bounds survey would be done from the section of the Judd Trail that is on Parcel 61. EXHIBIT A 6 GRAHAM:So 61 is the parcel immediately to the south? LAU:Yes. GRAHAM:Right. LAU:So we would prepare a metes and bounds for that section as well as the section of the wall that’s on our property. GRAHAM:Okay. LAU:Mauka of that, it’s already a legal lot. GRAHAM:It is already a legal lot? LAU:Well, that’s my understanding from looking at the tax map. GRAHAM:Yeah, when I looked at the GIS map that the County gives us, I can see this long, lean, which I believe is, correct. So, anyway, I thank you for that metes and bounds offering because I know that was one of the things we were very concerned of the last time. Just from the information we have today, when you’re showing like the Wes Thomas map here, as we get to the mauka end of your lot there, Lot 58? LAU:Yes. GRAHAM:It looks like there’s a driveway running here, running right across through the Judd Trail and all that, and it runs through a corner of the subject property, too. So presumably that kind of intersects the Judd Trail as it goes south into the adjoining lot. LAU:Yes, my understanding is that that driveway will be removed. No, you’re talking about the driveway on the mauka side, right? GRAHAM:Yes. LAU:Yes. The portion of the driveway on our property will be removed. GRAHAM:And because that’s not a driveway that’s being used or -? LAU:Because it’s on our property, it will be removed. It’s not part of the development of this property. GRAHAM:I see. So the Judd Trail will have sort of exclusive right-of-way right up to the mauka side? EXHIBIT A 7 LAU:Yes. GRAHAM:Okay. Thank you very much for that. One other issue a little bit away from the Judd Trail that came to mind from looking at the tax map keys is that the parcel both mauka, 69, is owned by Larry Smith as well as the parcel immediate to the south, 61. LAU:Yes. GRAHAM:So, the question I was thinking of now is kind of like a roadway traffic, a roadway issue, you’re sort of bringing in a cul-de-sac kind of entry to service this development. So I’m just kind of wondering if there is any future development of the mauka lot, for instance, how would that ever be serviced, or is that just an issue you’re not looking at, or maybe the Planning Director has a need to deal with and -? LAU:I believe that that lot is being serviced by Lot B, as in boy, as shown on the Wes Thomas map. That was created as part of the subdivision of the Hoomalu development. GRAHAM:You mean that lot already has access from the mauka direction? LAU:Well, it’s north-south access. If you look at the blow-up of the tax map that I provided, I believe it’s Lot 80. GRAHAM:Right. LAU:That would service Lot 69. So there would be no access through 58 or 57 to 69. GRAHAM:Right. So all I’m really asking is, there’s no need for any future development on these adjoining lots to have some kind of condition on you folks that you would provide access so they can get to Ali`i Drive or anything? LAU:Correct. They already have access. GRAHAM:Okay. Thank you. WATANABE:Mr. Director? YUEN:Just to, those lots are currently zoned Ag-5 so there’s no subdivision potential under the current zoning.They do have access from a private road, I think the name is Kaumalumalu that comes from Ali`i Drive, it’s a gated private road right now. That was approved during the subdivision of the 5-acre lots. WATANABE:Mr. Graham? EXHIBIT A 8 GRAHAM:Could I just ask a small follow-up to the Planning Director. I know that, and I’m thinking the community in general, I’m thinking of the private road issue, not issue but the private road you just spoke of.I think the community in general kind of prefers public roads as opposed to private gated subdivisions and all, and we have a couple of private gated entries on today’s agenda. And I was just wondering when you look at applications and when you talk with applicants and all, how does that whole issue of private versus dedicated roads weigh in your decision about what you want to happen and don’t want to happen and all? YUEN:Well, it’s, if it’s something that we want as a part of a private road system, then the Subdivision Code can make you create a dedicable street and turn it over to the County, but the Code allows you to have a private street. So in a situation where there is a, there’s a desire to have it as a connecting road, for example, if the applicant wants to keep it private, we permit that. WATANABE:Are there any other questions? Mr. Salavea? SALAVEA:Yes, for the Planning Director, follow-up to Commissioner Graham’s question. I noted that the Kona Traffic & Safety Committee had mentioned something about possibly making that a condition for the private road to accommodate future mauka-makai access, a tie-in between Ali`i, and I’m not sure if it’s Queen K above. Is that something that would be a possibility in this area, or needed, or -? I’d like to hear your comments? YUEN:Well, the only, the mauka, the next road to tie to would be the Ali`i Parkway or Keauhou, Kahului-Keauhou Parkway, if and when, you know, that’s built. But this property doesn’t abut that and it’s separated from it by other private properties in this 5-acre lot Kaumalumalu Subdivision. So it’s not really a feasible condition. The general desire right now, the engineering of the Ali`i Parkway calls for it to be a limited access with relatively few intersections, so the idea is to try to have other road connections that then lead into the major intersections. The intersections, the major intersections in this area, one would be at Laaloa Street, which is a little bit to the south, and the other would be at Lako Street, which is a little bit to the north. You’ll see that, we have a map showing where Lako Street would go. But that would be the idea here rather than a, rather than bringing a number of connections up to the Parkway. There will be only these few and then you would want to have some internal connections. SALAVEA:Okay. Thank you, Mr. Director. I will, another question for our Applicant. I read through the Cultural Archaeological Report and it was a little technical for my abilities. And I was just wondering if you or your representative could summarize what the process would be for not only the Judd Trail but for the other sites on the property, what would the process be to recover. And then that was another question I had, difference between recover, and I think it said data recovery and -. LAU:Preservation. EXHIBIT A 9 SALAVEA:Preservation. Yeah, I’m not the most akamai in that area so if you could just clarify for me, please. LAU:Unfortunately, I’m not as akamai, either. I’d like to bring up Mr. Kennedy and I think he can give us some background on this. Thank you. SALAVEA:Thank you. WATANABE:Mr. Kennedy, may I swear you in? Would you raise your right hand, please? I need to swear you in prior to testimony. Do you swear or affirm to tell the truth now before the Hawai`i County Planning Commission? KENNEDY:Yes, I do. WATANABE:And would you state your name and address for the record, please? KENNEDY:Joseph Kennedy, 59-624 Pupukea Road, Haleiwa, Hawai`i. WATANABE:I believe the question was from Mr. Salavea. SALAVEA:If you could summarize the recovery, the preservation process for us? KENNEDY:I think I can keep it simple and put it in plain English. SALAVEA:Thank you. KENNEDY:An Archaeological Inventory Survey was conducted, not by myself but another qualified firm some years ago. The inventory phase is essentially a discovery phase where an archaeologist systematically goes through a property, identifies all the historic properties. That happened I believe in the ‘90s. Then when I came on board there was an issue of data recovery, which is another step in the archaeological process whereby additional information is taken from the sites; and it is a process that lends some sort of justification to the trade-off between modern needs and the respected past. In addition, in this particular property, there is a, by comparison I would say, a very generous preservation zone that fronts Ali`i Drive. The entire length of the property saved for a, I think it’s a 20- or -. LAU:Forty-foot road. KENNEDY:Forty-foot access road so they can go in and out. But all fronting Ali`i Drive and what, in my opinion, would be the defining agent of this development will be a variety of sites from a variety of time periods in Hawaiian history. Some are EXHIBIT A 10 th pre-contact, some are 19 century. There are religious structures, there is a portion of the Judd Trail, there are habitation sites and all sorts of stuff buried in the ground. As mentioned, the entire length of this property fronting Ali`i Drive, paralleling Ali`i Drive, will be preserved. Preserved, the definition of it I guess is, it’s an in perpetuity covenant that is affixed to the deed of this property. So it means that some day Towne Development or the individual landowners may sell, people may come and go, but that preservation area is going to remain the same. The deed is going to be tagged. So even if it changes hands, that place is locked in a state to which it’s in now and as it has been built up probably over 300-400 years. So if every single development had this much preservation, the archaeological community and I think the Hawaiian community would be very happy. This one has got it and I’m happy to see it. I’d also would like to weigh in a little bit about that portion of the Judd Trail that is on the subject property, not all of the Judd Trail is now. It’s only those walls; and then it veers off to the south. And there’s an easement that has been set aside to accommodate the majority of the Judd Trail which is off the subject property. But the portion that is in is the very beginnings of the old Judd Road or the Judd Trail; and that section, I’m happy to say is going to be preserved in perpetuity in two different ways. One, fortunately for people who are interested in trails and historic sites, the entire portion of the trail that is on Mr. Lau’s property falls into the archaeological preservation zone, so that tags it for that preservation and perpetuity status. Also, it’s also, fortunately, within the setback area, the no-build setback area, so it really enjoys a very favorite spot. The Judd Trail is a very important thing, not only to Na Ala Hele but members of the community, members of the archaeological community; and the part, the beginning of it, the very beginning of it that is on this property is very nicely preserved. So, I hope that that’s a plain English, thumb-nail sketch of the archaeological situation there. SALAVEA:Yes, thank you. KENNEDY:You’re welcome. SALAVEA:My follow-up question for Mr. Lau, how is the Preservation Plan implemented into the future? Is it, I’m thinking that there is some type of cost associated with maintaining the preservation area, be it landscaping or, you know, just insuring that nothing encroaches into this area. How is the cost going to be carried for that part of the Preservation Plan? LAU:Well, first of all, the Preservation Plan is a plan that has been submitted by Mr. Kennedy to the State, and I’ll have him address that portion. But with respect to any ongoing obligations, there would be obligations of the owners of the development. EXHIBIT A 11 KENNEDY:Yeah, usually what happens in these cases is -. I wrote the Preservation Plan so I can tell you what’s in it, and there is a stabilization landscaping provision and maintenance. So the way I wrote the Plan is that the invasive species out, replanted with Hawaiian, Native Hawaiian plants. Those portions of the above-grade rock work that is inclusive within the preservation zone needs to be stabilized in some way. Somebody needs to get in there, dry masonry and make it so it’s not -. They’ve been cattle-damaged over the years and earthquake, that sort of stuff, and keawe tree roots wreck havoc with archaeological sites. In time, they will topple them. So it’s the landscaping provision that is enforced under HRS 6-E; and, usually, Chris would know better. But in my experience it’s the homeowner’s association that bears the brunt that they collectively have to adhere to the tenetsof the Preservation Plan as it’s written. And they’re obligated to maintain it, first to clear the land, the invasive landscape, stabilize what’s there, clean it up, keep it clean, keep it safe. And, like I say, because those documents go through review by Department of Land and Natural Resources, Historic Preservation Division, I would think that tenets and the covenants of all those documents fall under 6-E, so there are consequences. LAU:With respect to the requirements of the Preservation Plan, that’s something that the developer, initial developer will take care of. With respect to ongoing maintenance, that’s what gets turned over to the homeowners. SALAVEA:Thank you. That answered my question. Thank you. WATANABE:Mr. Iwashita? IWASHITA:Mr. Chang, going back to the Judd Trail, I just wanted to, ‘cause I’m not really familiar with the jurisdiction or the authority or the powers of Na Ala Hele. As to the Judd Trail, though, ideally, in the future, would Na Ala Hele basically be responsible for the entire 16 miles assuming that Na Ala Hele could acquire the authority over all that? Would Na Ala Hele take jurisdiction over the entire length of the Judd Trail? CHANG:Yeah, that’s one of the things that we could do. Yes, that is correct. IWASHITA:So that in the future if, I think it’s the feeling of the body pretty much that we would want to do what we can to have the Judd Trail become accessible to the public in the future. That would be done through Na Ala Hele, is that correct? CHANG:Yes, it could be done through us. But there’s some other issues that has to be looked at also, ‘cause we’re going to open this section up. We’re going to have to make sure that parking and, you know, that type of stuff is available, too. ‘Cause there’s no parking along Alii Drive and all that kind of stuff. So, you know, those kinds of issues are going to have to be dealt with in the future. EXHIBIT A 12 IWASHITA:Okay. And then as far as Na Ala Hele, it’s like an administrative body. You’re not going to, Na Ala Hele, the trail would be owned by the State? CHANG:That is correct, owned by the State. IWASHITA:Thank you. My next question is for Mr. Lau. And I guess, you know, I’m looking at the Wes Thomas map again. LAU:Yes. IWASHITA:And, you know, the walls demonstrate to me that the lines on the map today might not be very accurate in terms of where the Judd Trail was actually built, you know, ‘cause I think mostly for convenience, somebody just drew a line on the map and they didn’t have a, without even regard to the actual location of where the trail was on the ground. And mauka of your property, Mr. Lau, you know that on this map it shows it basically as a straight line, yeah -? LAU:Correct. IWASHITA:Going mauka. You know, so, where we are now I guess my understanding is that you’re willing to convey title to the State, or whoever is appropriate? Actually, the way I look at it you would quitclaim any possible interest that you may be claiming against the Judd Trail. Because in my view, you know, the title to the Judd Trail can never be questioned. It was established as a government road. It has always been a government road since 1859 and the Kingdom of Hawai`i, the Republic of Hawai`i, the Territory of Hawai`i, the State of Hawai`i. Nobody ever conveyed title to the Judd Trail to anyone, right? So the title cannot really be questioned. The only question is where is the Judd Trail. So because your title apparently to your property includes an area that now it appears clearly is part of the Judd Trail, some legal conveyance is going to take place to clear it up. And looking at the map, I see that little dotted line. I guess it’s just north of the northern wall that Wes Thomas Associates has drawn in. That would be the area that you were indicating will be part of this conveyance or conveyancing? LAU:That is correct. IWASHITA:Okay. My question is, you know, mauka of your property, there is a 10-foot wide easement for no building along both sides of what’s designated as the Judd Trail, Lot A. Will your conveyancing also include a similar 10-foot easement I guess to the extent that it would impact your property along what would be the agreed location of the Judd Trail? LAU:Yes, we would be agreeable to that. EXHIBIT A 13 IWASHITA:And would that extend the length of the southern boundary of your property up to where it, you know, would abut to the existing Judd Trail shown on this map? Just to clarify, I’m talking about extending the dotted line from the mauka boundary of your property down towards Ali`i Drive, you know, 10 feet. LAU:Correct. Yes, we would be amenable to that. IWASHITA:Okay. Thank you, Mr. Lau. WATANABE:Any other questions? Seeing none, we do have one testifier on this. Oh, by the way, you may be seated. Thank you. So, may I ask Mr. Tyler to come up? I believe he signed up to testify. Do you swear or affirm to tell the truth now before the Hawai`i County Planning Commission? TYLER:I do. WATANABE:Would you state your name and address for the record, please? TYLER:Good morning, Mr. Chairman, Members of the Hawai`i County Planning Commission and staff and those present. My name is Curtis Tyler, I live at 73- 1305 Hiolani Street, Kailua-Kona, actually, it’s Kalaoa Mauka. And I appreciate the opportunity to come back to provide some additional information to you. First of all, I want to thank Mr. Lau for providing me with his personal copy which he had that day of the Cultural Impact Assessment that was done by Liz Gregg for Archaeological Consultants of the Pacific. I’ve had an opportunity to review that document; and part of the reason that I objected last time is because I had never seen that document, as you recall. The guidelines established by the OEQC, the Office of Environmental Quality Control, relating to Cultural Impact Statements and also adopted by that State agency and directly relating to Chapter, excuse me, Hawai`i Revised Statutes, Chapter 205A, the Cultural Zone Management Act, specifically states that when these are done, they’re to be reviewed by the interviewees and release to be suggested or release to be signed; and I have no objection to signing a release. I wouldn’t have given the information if I didn’t want to do so. But I don’t recall that that was done. And, furthermore, there are many, there a number, excuse me, the Cultural Impact Assessment contains a number of what I would regard as significant errors, including the fact, including the mis-statement that I was born on Oahu, when my interview clearly states that I was born in Kona. It contains many misspellings which would lead one to think that perhaps the interviewee didn’t know what he was talking about. And, in light of the fact that this is a Cultural Impact Assessment, the fact that there are so many misspellings, inaccurate information or incomplete information relating to cultural resources is, quite frankly, very disappointing to me; and I think it’s inconsistent with the intent of the OEQC regulations, as well as the State rules, as well as your own Commission rule, Rule 9. EXHIBIT A 14 I’m not here to oppose this project. I want to make it very clear. But I am here to, since Rule 9 was amended sometime ago and one of the main amendments to your rule, SMA Rule 9, Planning Commission Rule 9, I’m referring to, excuse me, is that “A written description of the anticipated impacts of the proposed development on valued cultural, historical or natural resources on or in the vicinity of the property to include:” and then it goes on further. I’m sure you folks know what the rule is. And the reason for this is to do the best that we all can, not only as citizens but as members of the Commission, as well as the Director, as well as his staff, to fulfill the State mandates, constitutional and otherwise, to protect and conserve these valuable cultural resources. And, so, I want to point out to you that just having a Cultural Impact Assessment in front of you doesn’t mean that it has done what it’s supposed to do. I would also, if you have read it, you will note, in my portion of it, and I did not read the other interviews, but there are references to other individuals who are, have much more information to and are more directly connected to this land. There’s also another mistaken statement in here that I’m a lineal descendent of the Kaumalumalu area. That is, I have not been recognized as such; and I’m not sure that I am. Certainly a cultural but I’m not -. I’m a lineal descendent to the Pahoehoe area, which is adjacent to this. I want to correct that for the record. And “The identity and scope of valued cultural, historical and natural resources in the area, including the extent to which traditional and customary native Hawaiian rights are exercised in the area,” I don’t think has been adequately covered. “The extent to which those resources, including traditional and customary native Hawaiian rights, will be affected or impaired by the proposed action,” also is not well covered, in my estimation. And “The feasible action, if any, to be taken to reasonably protect any valued cultural, historical or natural resources, including any existing traditional and customary native Hawaiian rights,” has been addressed in terms of the preservation areas. But the background of the significance and importance of this area, that is Kaumalumalu and Holualoa 4, as well as surrounding areas, as a royal residence and a royal center has not been adequately covered here, in my estimation; and I can’t imagine that that would necessarily be any reason for you not granting an SMA permit, although that’s what your rule says. Now, with respect to the Judd Trail, my concern was that it appeared to me that some of the tax maps, as well as the representation that some of the walls and portions of the trail were not intact or had been destroyed, seemed to be mistaken. Mr. Chang has gone out there and you heard his testimony a little while ago indicating that there has been, that there has been damage to the walls. I’m very sorry to hear that. And there’s an indication that perhaps this damage was done prior to Mr. Smith’s acquiring this property and that may be true, although I recall the walls being intact in the ‘80s and perhaps it EXHIBIT A 15 was into the ‘90s, I can’t recall when we went there, and that was with the Na Ala Hele Advisory Council. So, where are we today? Mr. Lau has showed me the map, the metes and bounds map which Wes Thomas and Associates drew up, and he has pointed out to me that a portion of the trail, including the walls, that is the north-western portion of the trail, a portion of it is on his property even though the 10-foot easement is shown on Mr. Smith’s adjacent property, Lot 4; and he indicated to me that they were going to incorporate that end as part of the preserved area, and I think we just heard that from Mr. Kennedy. That’s very good. I’m pleased to hear that. I’m also very pleased to hear from Mr. Lau that he is willing to convey over to the State an additional 10-foot buffer zone to be used as a buffer zone from where the trail is located on his property. Now, the fact that the trail was bulldozed or destroyed as some people indicated, it doesn’t mean that the trail isn’t there, as I’m sure we all know that. And so it would be my suggestion that in addition to the clearing of the trail, that there be a rebuilding, as I think I mentioned last time, excuse me, as I mentioned in my interview with Ms. Gregg, that the walls be restored. If they’ve been destroyed, they were part of the trail, they should be put back. And I suggest that this be done, if you’ll refer to my interview, that this be done before any dozers went in there so the rocks would be, you know, not further damaged and put back in the wall. Now I have not read the Preservation Plan, nor I have read the Burial Treatment Plan. I believe both of those have been approved; and if I’m wrong on that, I hope someone will correct me. But I believe that as part of the SMA condition, if it is your decision to grant this, that you require that the preservation and maintenance of this trail and any other cultural resources, whether within the preserved area or that come to light outside the preserved area, be maintained through, be protected, conserved and maintained in perpetuity by either the Association or, normally it is the Association, or their successors and assigns, through a written and recorded document of covenants of same with the Bureau of Conveyances, and that final approval of this project is not to happen until the recorded, approved and recorded document is in the hands of the Planning Director. And why do I say this? Because once the dozers roll, that’s it. And so I’m trying to be proactive here to be sure that because of the sensitivity of this area and its significance that we take every measure to insure that there’s no mechanical grubbing and grading until all of the sites have been surveyed, I think they have been surveyed, and plotted accurately on the Subdivision Map, and that all of the preservation, interim construction preservation buffers, including those connected with the trail, which it would seem to be at least 15 to 20 feet, be put in place before there’s any mechanical grubbing, grading, clearing, or anything like that. And the reason for that is because, as some of you may know from your history of being on this body, that these kinds of things once they are done, they’re irreparable in some case. Finally, I was going to recommend, and I think I heard some of it about a “no-build,” and I think I did recommend this in my interview, that there’d be a “no-build buffer” of at least 10 feet, and perhaps more, from the edge of the trail -. In other words, the trail itself EXHIBIT A 16 is, while it might be shown within the metes and bounds of either Mr. Lau’s property and/or, I’m sorry, the subject property and/or the adjacent property also owned by Mr. Smith, Lot 4, that there be an additional buffer from this because this is, as Mr. Iwashita has pointed out, is part of the State Trust assets; and it is held, it’s held in trust for all the people. And it is not, the current property owners, successors and assigns will not own that unless there has been a quitclaim deed, and I can’t imagine how it would happened. And, I think that covers my comments. I’d be happy to answer any questions if any of you have any. Thank you. WATANABE:Thank you. Are there any questions for the testifier? Mr. Salavea? SALAVEA:Thank you, Mr. Chair. Thank you, Mr. Tyler, for your testimony and being here this morning. TYLER:You’re welcome, sir. SALAVEA:Regarding the cultural representation of the archaeological or the cultural EIS and it being insufficient in your opinion, what recommendations do you have for the body to remedy the situation or insure that the assets on site are fully represented in there in terms of their significance and the role that they played in Hawaiian times? TYLER:Thank you for the question, sir. I’ll attempt to answer it as best I can. I point this out because the inclusion of impact assessments into your rules is one of the best things that has happened in a long time; and I commend the Director for suggesting these. And I point out what I believe are the shortcomings because this area is so significant and the, there have been substantial studies done for the State Department of Land and Natural Resources, in particular, the Parks Division, as well as the State Historic Preservation Division about this area, including specifically Kaumalumalu; and I cited it in my interview. Yet, to my knowledge, none of these documents that are referenced seemed to have been reviewed with respect to this assessment. And I think if they had been there would have been a lot more information in this assessment that would be relevant to your very question about, you know, what is there and what might go on there in the future. The perspective that Native Hawaiian practitioners has about cultural resources is significantly different than a public user, and I tried to point out to Ms. Gregg that the Keolanahihi and Keakealani Wahine Complexes which adjoin this, which are nearby, actually there’s a slightly intervening property between them but was all part of this well center, were so important in Hawaiian culture, and Hawaiian daily life that, and perpetuation of the culture that these should have been considered here. I shudder to think that, you know, 20 years from now, somebody is going to read this report and say, “My God, what happened here. There really wasn’t much going on,” and that’s all, you know. I’m not here to hold up the project. I just -. WATANABE:Yeah. Mr. Tyler, if I may -. EXHIBIT A 17 TYLER:You may. WATANABE:With regard to the survey and also the 10-foot additional buffer that Mr. Lau has agreed to provide, do you have any objections, or are you contesting the actual location of the Judd Trail, or is it more an issue of the historical content, or, that’s within this cultural assessment? TYLER:Thank you for that question, Mr. Chairman. I’m not contesting the location. It appears to me that Wes Thomas went out there, and what they did was they located what wall they found on Mr. Lau’s property. I believe that there’s more of the trail on Mr. Lau’s property or it may have been, the walls may have been destroyed, in other words, its physical delineation may have been destroyed, which is not shown there. And the Hawaiians didn’t have a, you know, didn’t have GIS equipment, so things weren’t always straight. So I think it has to, it has to be looked at in light of the big picture which is, okay, so this individual owns this property and this individual might be the same individual who owns this property and there’s a metes and bounds description but there’s this trail that runs along, or through, or meanders through this particular straight line; and all too often it’s overlooked because of the modern metes and bounds description. But this, as Mr. Iwashita has point out, is a government road subject to the Highways Act of 1892. So I’m not contesting it, but I’m just pointing out to the Planning Commission, ‘cause this is going to happen again, maybe even today, that these kinds of things have to be taken into consideration. It is always not just the straight line. Thank you. WATANABE:Thank you. But, you know, with Mr. Lau being willing to deed over this to whatever entity, the State I guess it would be, and the fact that the Judd Trail is on the southern border and not within any building area because the setbacks would definitely exclude the Judd Trail, I tend to feel that we should be able to proceed without that much concern about the actual preservation of the trail. And they also have conceded that they will stabilize to the best of their ability what exists, yeah? TYLER:Absolutely; and I don’t, you know, that’s your prerogative. I’m merely expressing to you my opinion of the way things are. It has been accepted, it’ll be your decision. My concern, as I told Mr. Lau, is that the trail is protected and that if it has been destroyed that it, you know, be put back. There are large preserved areas here. Mr. Kennedy has pointed out these are unusually large. I’m grateful for that, I’m very grateful for it. I said I do not oppose this project. I just want to be sure that there are conditions in place and there are covenants recorded so that we don’t have the kinds of repetitive situations that occurred with so many important cultural resources. WATANABE:Okay, thank you. TYLER:You’re welcome. WATANABE:Are there any other questions? Mr. Iwashita? EXHIBIT A 18 IWASHITA:Thank you, Mr. Chair. Mr. Tyler, have you had an opportunity to review the Wes Thomas Associates’ survey map? TYLER:I have. I have it in front of me here. Mr. Lau showed it to me before the meeting and he left it here for me to refer to if I needed to. IWASHITA:Do you have any concerns about the lines drawn by Wes Thomas Associates as to the location of the Judd Trail, in particular at the mauka end of the remnant of the wall? Basically a line just jogs off to the right back to the boundary line, you know, and that’s a GIS kind of line or a GPS line; and it doesn’t seem like the way the wall would have originally been built. But do you have any concerns about any of those lines drawn on the Wes Thomas map? LAU:I drew a dashed line on the map that I showed Mr. Tyler that would coincide with that additional buffer that we had discussed earlier. So what Mr. Tyler has in front of him differs slightly from what you have because of the dash line that I drew. TYLER:May I answer the question? IWASHITA:Yes. Please. TYLER:Yes, and thank you to Mr. Lau for explaining the dash line because I was going to point out that there is a dash line, a hand written dash line that is not a surveyor’s line. As I tried to state when answering Mr. Chairman Watanabe’s question, the fact that portions of the trail were damaged, obliterated, destroyed, doesn’t mean the trail wasn’t on this property. Okay? And if anybody doubts that, they just have to go and look to the rulings, recent rulings by Judge Ibarra regarding the Hokulia case; and those issues remain, those Findings of Fact, Conclusions of Law, Decision of Order remain intact. They were not part of the settlement, as I understand it. So what has happened so often in my short, you know, 60 years of living here, and I say short because this is going back over a thousand years, is that these kinds of things get taken away, they get destroyed on a weekend or even, you know, whatever; and nobody is here to see it. So when they say, oh, we can’t find it, the wall isn’t here -- Well, the wall was there. The wall was there because, you know, I saw it. In fact, the impact statement says that the wall was there and it was damaged. So when I talk about a 10-foot buffer from the edge of the trail, I mean from the edge of the trail that exists, not from where somebody else’s easement is on another piece of property. It’s from where the trail was. Okay? IWASHTIA:Thank you, Mr. Tyler. TYLER:You’re welcome. EXHIBIT A 19 IWASHITA:Let me have a follow-up ‘cause, you know, your suggestion about asking to have the wall rebuilt, I think, I would like to follow-up on that. But as a practical concern, you know, what you’re speaking of presents a difficulty as I see it since the wall is not there. And then how do you determine or who’s going to decide where the wall should be rebuilt? And, you know, what we have now mauka of this property is a straight line drawn, you know, basically between the adjoining privately- owned property. And so I don’t know how that was determined but it would seem that from that point any rebuilding of the wall would have to follow that straight line. What we’re talking about is, you know, the area from that Lot A down back to Ali`i Drive. And what process, I guess, would you suggest to be used to rebuild the wall? TYLER:Thank you for that question. I should have said something earlier about it. I told Mr. Lau that I would be glad to work with him and, you know, his people to try to find a way to make this pono; and I think he does, I think he wants to do it. And I also know that, you know, Mr. Judd, who’s the great, great-grandson I think of the Minister of Interior after whom this trail is named, is also interested in this, along with perhaps some of his other siblings, some of whom are mentioned in the impact statement. And I don’t regard this as an adversarial situation. Okay? Mr. Lau and Mr. Smith are not, are not my adversaries. I think these go to the contrary, actually. They didn’t destroy this, or at least I don’t think Mr. Lau did. I don’t know, I have no idea what Mr. Smith’s role was. But this has happened apparently before they took ownership of this property. It has been for sale many times; and they can’t be held responsible for something somebody else has done. But they are willing to mitigate this and try to bring this trail back to some sense of what it was. And I’ve told Mr. Lau, and he knows that I’m pretty good at my word to, that I’ll help him or some of the people that he has worked with, because that’s the objective that we all want. My objective is not to stop this project. Okay? My objective is to get on the record information which is critical for the perpetuation and future use of these valuable resources for present and future generations. That’s it. I have no bone to pick with Mr. Lau or anyone else involved with this because they’ve indicated a willingness and they’ve gone the extra mile. My goodness, they anticipated a metes and bounds. IWASHITA:That said, I take it that you are also convinced that the Commission as a body is pretty much on the same wave length as you are? TYLER:Well, I don’t know that. I haven’t heard from other Commissioners. But there have been some very good questioning; and I’m hopeful. I just want to be sure that there’s no grubbing and grading until the buffers are up, delineated and a mechanical, I’m talking about mechanical, and that it, you know, that there is a recorded covenant. So that if there’s an agreement with the State DLNR and Na Ala Hele Trails Program for a collaborative effort to maintain and restore and maintain this trail, that something be put down. Because, otherwise, you know, folks, it’s going to get lost in the record there. So, you know, that’s it. And, again, if I can assist in any way, that’s what I’m here to do today. I’m not here to oppose this project. WATANABE:Okay. Thank you. No other questions? EXHIBIT A 20 TYLER:Thank you very much. WATANABE:Okay, you may be seated. Could I call up the Applicants again, please. Okay, fellow Commissioners, we had some pretty lengthy discussions so far. Do you have any further comments to what Mr. Tyler has stated? LAU:No, Mr. Chairman, I do not. I believe that the proposed draft conditions address all of the concerns that Mr. Tyler has raised. WATANABE:And you had an opportunity to read the conditions that the Planning Director has proposed? LAU:Yes. WATANABE:Are you satisfied with those? LAU:Yes, I am. WATANABE:Thank you. IWASHITA:Follow-up? WATANABE:Mr. Iwashita. IWASHITA:Thank you, Mr. Chair. Mr. Lau, given what Mr. Tyler testified to about the rebuilding of the wall, I guess, whatever portion would extend beyond the mauka remnant that’s showed on your property now, would you be agreeable to do that, to extend that up until wherever the trail is no longer on your property? LAU:To where it’s no longer in our property? IWASHITA:Right. You can’t build something that’s not on your property. So I’m talking about to the extent that this wall is extended mauka up until where it meets, you know, your boundary, would you be willing to rebuild the wall? LAU:So if I can understand the question, right now the northern wall has a jog from the mauka end to the property line. IWASHITA:Yes, the one that Wes Thomas drew. LAU:Yes, so we would extend the wall to that property line. IWASHITA:Well, I’m not comfortable that that’s actually where the wall, you know, that that’s the true line of the wall.So it may be a little bit more mauka where it actually, you know, meets your boundary line. But my understanding of Mr. Tyler’s EXHIBIT A 21 testimony is that -. I guess in his discussions with you, he indicated he was willing to work with your company to, I guess, get the alignment so as to extend it mauka. And, you know, I guess I don’t see it going all the way up to your mauka boundary. But it would seem to me that as the wall, if you just extrapolate that line, you know, it goes up maybe another, I don’t have the scale here, but maybe about three times more than what Wes Thomas drew. If you just drew a relatively straight line further mauka, maybe four times, it’d go like a third or a little bit farther up your boundary there. LAU:Yes, we will be amenable to that. I think what you’re saying is take the northern wall, draw a straight line to where it intersects the property line and rebuild the wall. IWASHITA:Yes. LAU:Yes. IWASHITA:Okay. Thank you. WATANABE:Any other, Mr. Salavea? IWASHITA:Then -. WATANABE:Oh, just a follow-up? IWASHITA:Yes. WATANABE:Okay. IWASHITA:Then with the, as far as the Director, the staff have any difficulty in drafting that condition? YUEN:It would have to be only if requested by the State because there would be, whenever you do an archaeologic -.If there’s a restoration of the Judd Trail at some point, it doesn’t make any sense to do it unless and until there’s an effort to restore the Judd Trial with stonewalls along it and to open it up for the public. So it would have to be only at the request of the State. What I’m saying is, you have a fragment and there is a real question by archaeologists and by the State when you restore things, you know, they don’t automatically think that it’s a good idea to put up walls that have been knocked down. And we don’t know how they’re going to handle the Judd Trail in the future, if it’s ever going to be opened up to public use. So just to go in and make 80 feet of wall, to put as a condition that you have to go in and make roughly, I’m eyeballing this and guessing we’re talking, you know, 60-80 feet of wall, there’s no point in doing that. There may be a point in doing that at some point, you know, if the State decides that they want to see a wall restored in the future.So that would be my take on that condition. EXHIBIT A 22 IWASHITA:Just a follow-up, this map by Wes Thomas shows the Judd Trail mauka of this property as a government road, County of Hawai`i, owner. That seems to be inaccurate to me. YUEN:I know the alignment was, that alignment was worked out in the subdivision of others in this Kaumalumalu Subdivision in the mid-1990s. I don’t know why they labeled it as a County of Hawai`i owner. Being a pedestrian path, it would be under the State. It’d be under the State as the owner. It would not be, in other words, a road in limbo is like a homestead road situation. IWASHITA:What you’re saying is it’s clear that the history of the Judd Road from 1859 was a Kingdom road and then, therefore, it would be today Trust, I guess considered part of the Trust assets of the State? Is that –? YUEN:Hawai`i Revised Statutes, Chapter 264, there’s a three-way division of roads. One is State highways that are under the State, jurisdiction of the State. The second are County highways which is everything else except. And I don’t remember the exact language but the gist of it is pedestrian-type trails. And, so, that’s why I say it would not be a County highway, it would be under that third category. IWASHITA:So the bottom line there is that, I guess, the title to the Judd Road is, it was originally built as a road, right? That seems like it has not really been determined it might be the County’s road. YUEN:I believe the State claims this and the County I’m sure accedesto the State ownership. IWASHITA:Thank you. WATANABE:Mr. Salavea? SALAVEA:Thank you, Mr. Chair. Mr. Lau, I appreciate your willingness to preserve the historical sites on this property; and I think you are 98 percent of the way there in terms of insuring that they’re taken care of and will be available for future generations for use and practice and, also, appreciation. What I want to ensure is the last two percent and making sure that what we are discussing and talking about here today actually gets carried out. And then the only assurances that I feel I can count on are conditions in the recommendation on your part. And if that’s applicable to the Planning Department’s processes regarding Mr. Tyler’s recommendations, would you be agreeable to both, the notes I have was record covenants, responsibility with the Bureau of Conveyances, and prior to groundbreaking or physical commencement of the project, preserving the boundary and maybe physically outline so that construction, machinery and personnel are very aware of the locations of these sites? And then -? YUEN:Can I -? EXHIBIT A 23 WATANABE:Mr. Salavea -? SALAVEA:Yes. YUEN:Can I jump in? SALAVEA:Yes, go ahead. YUEN:Thank you. Just so the Commission, just for the understanding of the Commission about why it’s not necessary to spell this out in all the permits -. For this project they have an approved Preservation Plan. Mr. Kennedy can give you more details. Invariably, the Preservation Plan will include the buffers for the sites and how they are to be established prior to construction. So we have a condition in this permit that the sites are to be preserved. And all of the things about making sure that the, and you’ve seen this in construction sites, the yellow tape being up, all of that is contained in the Preservation Plan. SALAVEA:Thank you, Mr. Director. Follow-up to that, so in terms of the covenants, it’s not necessary for a covenant to specify the responsibilities -? YUEN:It’s in the Preservation Plan that is binding upon the Applicant. SALAVEA:Okay. Thank you. WATANABE:I believe we had discussions about that and they did indicate, Mr. Kennedy, I believe it is, did indicate that the follow-up maintenance would be the responsibility of the future owners; and so it would be written into the covenant, and I would think that that’s sufficient. In addition, you know, as I mentioned earlier, it would seem that the Judd Trail that we’re speaking about now is barely touching this property if at all and they agreed to a 10-foot buffer, besides which there is an additional building setback to that, so I don’t really envision bulldozers going through that area as far as the Judd Trail is concerned. The rest is an archaeological preserve anyway except for the, I think it was 40-foot driveway entrance. So, you know, it would appear that all the conditions that are set here would protect whatever is remaining quite handily, or at least to my satisfaction. Any further discussion? Mr. Salavea? SALAVEA:No. WATANABE:If there isn’t, can I get a motion, please? Oh, excuse me, well, you may be seated. IWASHITA:Mr. Chair. WATANABE:Yes, Mr. Iwashita? EXHIBIT A 24 IWASHITA:I’ve been looking at these documents, and given the Director’s comments, I guess -. I understand the Director’s comments to say that basically as far as the actual restoration of the Judd Trail it’s not in the County’s hands, is not in our hands, it’s going to be in the State’s, I guess, through Na Ala Hele at some point, if that’s, you know, going to be done. You know, whenever the subdivision was done in the ‘90s or ‘80s, up mauka, you know, the County took the steps to preserve the Judd Trail legally by setting it out as part of that subdivision process. I think, you know, we’re talking about probably if it’s ever going to be restored, the most important part of the Judd Trail being the terminus on Ali`i Drive. And, you know, if we don’t do anything now to take advantage of the opportunity here to do what we can to preserve what we can in some form, you know, as Mr. Tyler suggests, then it seems to me that’ll be the beginning of forgetting about this and, you know, no hope almost of ever getting the 16 miles, the other 16 miles of the Judd Trail restored. So I really would like to have some provisions in. And if it takes, you know, perhaps extending the preservation area along this boundary to include, you know, what is clearly part of the Judd Trail, then I think that’s what we can do and that’s what should be done. I understand the legal limitations because it is State property today. So my suggestion is that we extend, you know, as a condition of this SMA permit, that we extend the preservation area from its present description to include, frankly, to be safe and to be in accordance with the -. Mr. Kennedy, what is the buffer zone now that’s, what’s the word to that buffer zone in the existing preservation area? KENNEDY:There’s a 40-foot temporary buffer zone and a 20-foot permanent buffer zone. IWASHITA:Okay, so I would suggest that a similar buffer zone along the southern boundary basically, you know, that would be described as along the Judd Trail; and in that way then we can be assured that for future purposes when Na Ala Hele finally gets together to do the Judd Trail restoration that there is on this property the area necessary in order to do the restoration. WATANABE:I understand your desire for an abundance of caution but -. You know, maybe we can ask the Director, as far as building setbacks on the side perimeters, how far is that currently? And if he were to extend this preservation area, would the building setbacks then change from the property line that currently exists to the end of the preservation area? Because now we’re talking about potentially reducing, significantly reducing, the building area; and I don’t see that as something that is easily accommodated. YUEN:Before I answer that question or address this, I just want to, I think I’ve asked it before but I just want to be absolutely clear on this. Mauka of the last extent of the stonewalls, is there any physical sign at all of where the Judd Trail is? KENNEDY:Unfortunately not. EXHIBIT A 25 YUEN:Okay. Then there’s no historical documentation other than tax maps which show it to being on the southern property -? KENNEDY:That’s correct. YUEN:That would enable you to locate the wall? KENNEDY:That’s correct. YUEN:So the only documentation, all the documentation you have -. The Judd Trail was created before these lots, and the lots were actually created with the Judd Trail as a boundary, except that there’s a metes and bounds apparently that includes a physical portion of the Judd Trial. And that’s the only reason why we say the Judd Trail is on this property, is that the physical remnant of the Judd Trail is on this property. Now, the fact being that the physical remnants do not extend beyond and there’s no other evidence, you have no basis, Na Ala Hele and we have no basis for saying that the Judd Trail extends mauka on this property. IWASHITA:That’s not true. YUEN:Why do you say that? What would the basis be? IWASHITA:Mr. Tyler just testified in the ‘80s he went there and the wall was there. YUEN:He does not know on whose property the wall was. In other words, the wall was there but to say that the wall was on the metes and bounds of this property, no one can say that. IWASHITA:Well, I think you can say that the wall didn’t jog the way Wes Thomas Associates drew it on this map, that it extended in a more linear fashion. I mean, if we want to get into deciphering the testimony we can. But my point is that, what I would like, what I understand this body can do is we can establish a preservation area. We can ask that the developer agree to establishing a preservation area so that these kind of issues can be dealt with in the future. The Director’s point has been that this body and the County cannot, as a practical matter, require the wall to be presently restored because that’s really for Na Ala Hele to take care of in the future. I don’t dispute that. I think that’s a good point. My point is that that doesn’t prevent us from our obligation under our rules to take steps necessary to protect what is clearly established on the record a very important cultural, historical site. That’s all I’m asking us to do, is to recognize that we have an obligation to do what we can today to preserve the remnants of the Judd Trail, and that we have an obligation to do what we can today to allow Na Ala Hele or whatever other proper authority, the Board of Land and Natural Resources, to take steps so in the future, give them the opportunity to do the restoration in the future. If we don’t do anything today -- EXHIBIT A 26 basically we’ve had testimony, you know, such as the testimony of Mr. Tyler and others who have actually witnessed and seen the walls before they were destroyed -- to say that, you know, the walls are actually now 10 feet inside the boundary on this property, whatever it is, the owners in the future can say, well, wait a minute, we have all our rights established here you can’t take those away from us without compensating us, and so forth.So what I’m saying is because there is this present uncertainty about the location of the trail that what we can do is establish a preservation area that would allow, you know, whether it’s 20 feet, or 15 feet, or whatever it is, you know, that would allow for the future restoration of the Judd Trail, when that happens. And to be very frank with everyone today, I really would like to have it happen. To me these are the kinds of things that make our community unique, this is why people come here from other places, and that we really need to take the extra effort, take the extra time to do this, and do it right. YUEN:Can I jump in just for a moment? WATANABE:Go ahead. YUEN:I have to ask the Commission to be reasonable to people that come in for applications. The Judd Trail itself is only a 10-foot wide right-of-way. First of all, I don’t think it’s reasonable to require this landowner to reserve a right-of-way for the Judd Trail to be re-established on his property when there is no evidence that it was on his property. Second thing is that the owner has already agreed to a 10-foot wide no- building setback. If it’s the desire of the Commission that a condition say that that would be an area where the Judd Trail can be relocated into, I see Mr. Lau nodding his head, and if he’s willing to agree, I certainly don’t disagree with that. But, as I say, they’re preserving the Judd Trail on their property and there’s no evidence that it continued, except where the stonewall was and perhaps some prolongation of the stonewall that does not create a jog. LAU:In conferring with Mr. Tyler, Mr. Tyler feels that a 10-foot buffer area would be sufficient in the event that we had to restore portions of the wall as requested by the State. So Mr. Tyler is in agreement with 10 feet. IWASHITA:That will be 10 feet along the existing boundary? LAU:Correct. WATANABE:Okay, Mr. Graham? GRAHAM:Can I ask one question of the Planning Director? I don’t really see th us timing sequence here, looking at the May 30 recommendations and all. So like the metes and bounds survey that they’ve agreed to do and all, is that going to happen before subdivision gets done or -? And all these conditions, I don’t think it really says before this and that happens, these conditions have to be met and all. So I’m just wondering if maybe if the metes and bounds survey were done before any grading and work were done, that would be real clear where we have the trail; and we don’t have to turn around EXHIBIT A 27 and come back and say, well, we kind of messed that up already ‘cause the survey wasn’t done or something. YUEN:Well, I think that we could say that the metes and bounds survey should be prepared prior to Final Subdivision Approval, because that should be included in the Final Subdivision map. GRAHAM:Okay. Thank you. WATANABE:You’re in agreement to that? LAU:Yes. WATANABE:Thank you. Okay. Seeing like there’s no further discussion on this matter, may I ask for a motion? Mr. Graham? GRAHAM:I move that the Hawai`i County Planning Commission grant Special Management Area Use Permit, SMA 05-007, including the recommendations given by the County of Hawai`i Planning Department on the yellow sheet, dated 5/30. And I also just want clarity on the deeding of the Quitclaim or whatever of the areas to the State. And I know in our Condition 13, we have a final sentence which says that “Upon request of the State, the Applicant shall quitclaim to the State any portions of the Judd Trail that are within the property boundaries.” And I think perhaps Commissioner Iwashita made an agreement with the Applicant here about some of the buffer area also being included. And so maybe Commissioner Iwashita could just clarify for my motion exactly how that No. 13 should read with regard to the quitclaim. And I’d also like to include No. 13 what the Planning Director and the Applicant just agreed to that the metes and bounds survey of the Judd Trail shall be prepared prior to Final Subdivision Approval. Thank you. IWASHITA:The buffer would be a 10-foot buffer easement for no building purposes, I guess, other than for the reconstruction or restoration of the Judd Trail wall. GRAHAM:Fine, thank you. I’d like to include that in my motion. WATANABE:Okay. We have a motion. Do we have a second? SALAVEA:Second. WATANABE:Thank you. It has been moved and seconded. Mr. Hayashi? Oh, excuse me. Discussion? Any discussion? IWASHITA:One moment, Mr. Chairman. I might have one comment. HAYASHI:Mr. Chair, are you waiting for a roll-call vote? EXHIBIT A 28 WATANABE:I think Mr. Iwashita wants to discuss this. IWASHITA:The Chair is indulging me just for one moment while I check on one point. Thank you, Mr. Chair, I don’t have anything to add. WATANABE:You’re satisfied? IWASHITA:Yes. WATANABE:Okay. Mr. Salavea, no? SALAVEA:No. WATANABE:Okay, it has been moved by Commissioner Graham and seconded by Commissioner Salavea to forward, I mean, to approve this SMA application. Mr. Hayashi? HAYASHI:Thank you, Mr. Chair. The motion is to approve the request, with the amendment to Condition 13. With that, I’ll call the roll call. Commissioner Graham? GRAHAM:Aye. HAYASHI:Commissioner Salavea? SALAVEA:Aye. HAYASHI:Commissioner Galdones? GALDONES:Aye. HAYASHI:Commissioner Iwashita? IWASHITA:Aye, with the reservations I expressed on the prior record. HAYASHI:Vice-Chair Watanabe? WATANABE: Aye. HAYASHI:Motion carries. WATANABE:Thank you. You’ll be informed in writing. EXHIBIT A 29 The discussion ended at 10:50 a.m. Respectfully submitted, Sharon M. Nomura, Secretary EXHIBIT A 30